An LFJ Conversation with Ian Coleman, Insurance & Funding Broker, Commercial and General
Ian is a qualified solicitor (non-practicing) in England & Wales. Having been involved in the Legal Expenses Insurance industry since November 1992, he has dealt with Before the Event (BTE) and After the Event (ATE) Legal Expenses Insurance in its various forms.
His work has included underwriting for ATE cover, a number of the early competition claims seeking damages for abusive anti-competitive conduct being brought then both in the High Court and Competition Appeals Tribunal (CAT) in England.
He also underwrote for ATE cover a number of group actions many of which were run under Group Litigation Orders (GLO) and other case management devices, spanning a wide variety of case types. Ian has underwritten numerous commercial litigation cases, civil fraud claims and insolvency matters.
Since 2020 Ian has acted as a broker, intermediating various insurance products relating to litigation and arbitration risks as well as intermediating litigation funding requirements where required.
Below is our LFJ conversation with Ian Coleman:
What does the landscape for litigation funding look like now in the UK?There are many strong opportunities available in the UK with excellent law firms. The use of litigation funding has become normalised in conjunction with ATE Insurance to cover the adverse costs exposure. Litigation funding is no longer seen as a tool just for the impecunious.
Opportunities range from commercial arbitration and investor state disputes to commercial litigation, civil fraud claims and of course the various forms of competition compensation claims conducted in the Competition Appeals Tribunal (CAT).
The availability of litigation funding frequently drives the law firm enquiry.
The Supreme Court decision in PACCAR remains current authority albeit that the Government has said that it will legislate to reverse the position and has received recommendation that be both retrospective and prospective. The caveat being when parliamentary time allows. However, a multiple on capital deployed (or in some cases committed) is permitted offering healthy returns for investors.
It has been suggested that ‘light touch regulation’ will be included in any such legislation or in follow-on legislation. The Lord Chancellor requested advice from the Civil Justice Council (CJC) with regards to the question of regulation. The CJC published its Final Report in June 2025. The CJC has recommended that regulation should not apply to arbitration proceedings as it should remain a matter for arbitral centres to determine whether and, if so, how any such regulation should be implemented. In Court and CAT proceedings regulation of litigation funders should be weighted according to whether the funding is provided to consumers or commercial parties.
The CJC suggests a minimum, baseline, set of regulatory requirements should therefore apply to litigation funding generally. These should include provision for: case-specific capital adequacy requirements; codification of the requirement that litigation funders should not control funded litigation; conflict of interest provisions; the application of anti-money laundering requirements; and disclosure at the earliest opportunity of the fact of funding, the name of the funder, and the ultimate source of the funding. The terms of LFAs should not, generally, be subject to disclosure.
It should be noted that the CJC specifically rejected the introduction of caps on litigation funders’ returns.
Law firm portfolio funding or case by case funding are options to consider albeit a balance of the law firm’s and their clients’ needs will be key in deciding which approach is requested. The CJC has recommended specific regulatory provisions for portfolio funding.
What is known as ‘The Arkin Cap’ continues to provide that the Court can make an appropriate decision concerning litigation funder liability for adverse costs on a case-by-case basis. For this reason, litigation funders will inevitably require that suitable ATE is in place.
It should be noted that no regulation has yet been introduced and it is debatable when there will be parliamentary time to attempt to do so. In any event regulation logically would be prospective only.
Can you speak to the issue of domiciling of funding SPVs to maximise insurance availability?Where litigation funding is sought it is extremely common in the UK for ATE Insurance to be required as part of the package and often Capital Protection Insurance is purchased by the litigation funder. Most of the insurance capacity for these products emanates from markets based in London.
Insurance may only be sold into a territory for which the insurer has a licence. The licencing requirements are dictated by the domicile of the Proposer (the party seeking insurance).
The Insurers invariably have a licence for the UK and Europe but not necessarily for other territories. In order to maximise the choice of insurance offerings the Proposer is ideally domiciled somewhere in the UK or Europe.
Where the Litigation Funder seeks Capital Protection Insurance (CPI) domiciling the SPV in say Guernsey may have a double benefit both in terms of insurance availability (to achieve the best terms) but also to maximise tax efficiencies. Most jurisdictions levy some form of insurance tax, but those that do not may be seen as attractive to the party paying the insurance premium. Any Litigation Funder seeking to set up an SPV in a tax and licencing friendly location should of course make their own enquiries in order to satisfy themselves that both requirements are met in that particular territory.
Where the Claimant is domiciled in a location that raises licencing challenges this may be overcome by the Litigation Funder providing an Adverse Costs Indemnity via its funding SPV and obtaining the ATE Insurance to cover off that risk.
This will however generally mean that security for costs must be provided but the ATE Policy can be fortified with what has become known as an Anti-Avoidance Endorsement (AAE). AAEs have been accepted in the UK Courts and in many arbitral forums.
Notwithstanding the place of domicile of the Proposer, the insurance policies will generally be written on the basis that the policy is governed by English Law and accordingly the duty of disclosure for the Proposer will be set out in the Insurance Act 2015 for non-consumers and Consumer Insurance (Disclosure and Representations) Act 2012 for consumers.
How do clients use insurance to mitigate risk and control funding spend?CPI can be obtained to protect some or all the capital deployed. This can be purchased either on a portfolio basis or case by case. Both methods have their advantages and disadvantages and that discussion deserves its own separate analysis. Both do mitigate the risk of losing capital. The scope of claim circumstances is a matter of negotiation with Insurers.
Generally, the conducting law firm will require some funding of their fees. Their fees can be further insulated from risk by Work in Progress Insurance (WiP) which protects an element of base fees should the claim be unsuccessful. In some circumstances WiP may be used to curtail the funding requirement.
For bilateral investment treaty arbitrations Arbitral Award Default Insurance (AADI) may also be available.
ATE is used commonly where costs follow the event to protect the risk of the claimant and litigation funder becoming liable for adverse costs.
Is the Competition Appeals Tribunal still a good funding opportunity?There has been much discussion about the CAT since the changes in 2015. Case longevity, case outcomes and distribution have been frequent topics of conversation. The question to be posed is whether ‘herd-thought’ means that good opportunities are being over-looked. That has most certainly been the experience of the writer.
The sector in the UK has a number of strong law firms, and the CAT requirements are being clarified with decisions that are now flowing through the forum.
Decisions from senior Courts have further assisted in setting out road maps for bringing and conducting such cases particularly with regards to Opt-Out and abuse of dominant position claims.
It should not be a surprise that as the new regime bedded in the earlier cases would take longer to conclude and the pathway would need to be set.
In Opt-Out cases the CAT does consider the funding and ATE packages at Certification stage together with the Class Representative’s understanding of how they work. Whilst certification can be refused on the basis of the above it does not equate in the event of certification to a blessing of the arrangements which can be revisited later.
Sensible pricing models from the outset are important. Certification will now have some regard to the merits of the claim, scope of the defined class and distribution. These can all be well managed to substantially mitigate the risk of the CAT subsequently intervening in stakeholder entitlements.
For cases that are not Opt-Out the above considerations do not apply.
What can you tell us about the importance of being clear on the source of funds?The hygiene factor around funds being used to support litigation and arbitration matters is increasingly significant. Litigation Funders should be aware of this and consider the level of checks that are required in other financial sectors. Matters such as KYC, AML, UBOs and sanctions / PEP enquiries are often mandatory. This approach would be reflective of the CJC recommendations.
The confirmation that such checks have been conducted and were satisfactory could well prove to be decisive where there are competing offers of litigation funding on the table.
